# Smt. Somwati & Ors. /Claimants v. N.I.C.L. & Ors

- **Citation:** (2022) 9 ILRA 407
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2022-08-04
- **Case number:** FAFO No. 80 of 2000
- **Bench:** Dr. Kaushal Jayendra Thaker
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/smt-somwati-ors-claimants-v-n-i-c-l-ors-49040
- **Pages:** 6

## Headnote

A. Civil Law - Motor Vehicle Act, 1988Section
176-Enhancement
of
compensation-deceased was 56 years and
he was a Principal in Inter CollegeTribunal awarded a sum of Rs. 3,29,500/-
together with interest @ 12% per annum
as compensation but not granted future
loss of income-the deceased was survived
by
five
dependents-By
applying
the
multiplier
of
9,
the
total
loss
of
dependency is assessed Rs.12,42000/-
Thus, the claimants held entitled for
408 INDIAN LAW REPORTS ALLAHABAD SERIES
increase
of
compensation
a
sum
of
Rs.13,12000/-@ 7% from Rs. 3,29,500/-
(Paras 1 to 18)

The appeal is partly allowed. (E-6)

List of Cases cited:

## Text

9 All. Smt. Somwati & Ors. Vs. N.I.C.L. & Ors.
407

(vii) the applicant has no previous
criminal history and he has already been
granted bail in the case under the Customs
Act;

(viii) the applicant does not hold
a passport and, therefore, he is not at a
flight risk;

(ix)
Besides
a
mere
vague
allegation that the applicant may tamper
with the evidence, no material is there to
give rise to a reasonable apprehension that
the applicant will misuse his liberty to
subvert justice or tamper with the evidence
or witnesses;

I find it a fit case to exercise this
Court's discretion of granting bail to the
applicant.

32. Let the applicant - Peeyush
Kumar Jain be released on bail in
Criminal Case No. 7646 of 2022 in the
Court of the Special Chief Judicial
Magistrate
(Economic
Offences)
/
Additional
Metropolitan
Magistrate-III,
Kanpur Nagar, arising out of the complaint
filed by DGGI in respect of offence under
Section 132 (1) (a) read with Section 132
(1) (i) and 132 (5) of the Central Goods and
Services Tax Act, 2017, on his furnishing a
personal bond of Rs.10,00,000/- and two
reliable sureties each of the like amount to
the satisfaction of the court concerned
subject to following conditions:-

(i) The applicant will not tamper
with the evidence during the trial.

(ii)
The
applicant
will
not
influence any witness.

(iii) The applicant will appear
before the trial court on the date fixed,
unless his personal presence is exempted,
in which case he will appear through his
Counsel.

(iv) The applicant will not,
directly
or
indirectly,
make
any
inducement, threat or promise to any
person acquainted with the facts of the case
so as to dissuade him from disclosing such
facts to the Court to any police officer or
tamper with the evidence.

33. In case of breach of any of the
above conditions, the prosecution shall be
at liberty to move an application before this
Court seeking cancellation of the present
order bail.
----------
(2022) 9 ILRA 407
APPELLATE JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 04.08.2022

BEFORE

THE HON'BLE DR. KAUSHAL JAYENDRA
THAKER, J.

FAFO No. 80 of 2000

Smt. Somwati & Ors.
 ...Appellants/Claimants
Versus
N.I.C.L. & Ors.
 ...Respondents/Opposite Parties

Counsel for the Appellants:
Sri R.K. Porwal, Sri P.K. Mukerjee

Counsel for the Respondents:
Sri Y.K. Saxena, Sri Alok Sharma, Sri Alok
Singh, Sri P.K. Sinha

A. Civil Law - Motor Vehicle Act, 1988Section
176-Enhancement
of
compensation-deceased was 56 years and
he was a Principal in Inter CollegeTribunal awarded a sum of Rs. 3,29,500/-
together with interest @ 12% per annum
as compensation but not granted future
loss of income-the deceased was survived
by
five
dependents-By
applying
the
multiplier
of
9,
the
total
loss
of
dependency is assessed Rs.12,42000/-
Thus, the claimants held entitled for
408 INDIAN LAW REPORTS ALLAHABAD SERIES
increase
of
compensation
a
sum
of
Rs.13,12000/-@ 7% from Rs. 3,29,500/-
(Paras 1 to 18)

The appeal is partly allowed. (E-6)

List of Cases cited:
1. National Insurance Co. Ltd. Vs Pranay Sethi &
ors.. 2017 LawSuit(SC) 1093.

2. Sarla Verma & ors. Vs Delhi Transport
Corrporation& anr.. 2009 LawSuit(SC).

3. F.A.F.O. No. 2389 of 2016 (National
Insurance Co. Ltd. Vs Smt. Vidyawati Devi & 2
Ors0 decided on 27.7.2016 and in First Appeal
From Order No. 3381 of 2003 (Raghuraj Singh
Vs Gyan Singh & ors.) decided on 8.4.2022

4. National Insurance Co. Ltd. Vs Lavkush& anr..
2018 (1) T.A.C. 431

5. Gobald Motor Service Ltd. & anr.. Vs R.M.K
Veluswami& ors., 1962 SCR(1) 929,

6. N. Jayasree & ors.. Vs Cholamandalam MS
General Insurance Co. Ltd. , 2021 LawSuit(SC)
656

7. A.V. Padma Vs Venugopal 2012 91) GLH(SC)
442.

8. Smt. Hansagauri P. Ladhani Vs The Oriental
Insurance Co. Ltd. 2007(2) GLH 291.

9. Bajaj Allianz General Insurance Co. Pvt. Ltd.
Vs U.O.I. & ors..

10. First Appeal From Order No. 3381 of
2003(Raghuraj Singh Vs Gyan Singhh& ors.)
decided on 8.4.2022

(Delivered by Hon'ble Dr. Kaushal
Jayendra Thaker, J.)

1. Heard Sri R.K. Porwal, learned
counsel for the appellants, Sri P.K. Sinha,
learned counsel for respondent-insurance
company and perused the judgment and
order impugned.

2. This appeal, at the behest of the
claimant, challenges the judgment and
award dated 14.10.1999 passed by the
Motor Accident Claims Tribunal/VIIth
Additional
District
Judge,
Etawah
(hereinafter referred to as 'Tribunal') in
M.A.C.P No.121 of 1997 awarding a sum
of Rs.3,29,500/- as compensation with
interest at the rate of 12%.

3. The accident is not in dispute. The
issue of negligence decided by the Tribunal
is also not in dispute. The issue to be
decided is the quantum of compensation
awarded and oral objection to finding of
fact as far as licence is concerned and
compensation is concerned.

4. The accident took place on
24.1.1997. The deceased was 56 years of
age. Deceased- Man Singh Yadav who was
56 years of age left behind him, his widow,
two minor son and two minor daughter
which fact is not in dispute. The Tribunal
considered his income to be Rs.15,000/-
per
month,
deducted
1/3rd
towards
personal expenses of the deceased, granted
multiplier of 8.

5. In this appeal a very technical issue
has arisen before this Court in appeal filed
under Section 173 of Motor Vehicles
Act,1988. It is contended that in the body
of the application for compensation, the
appellants
had
mentioned
that
the
application was filed under Section 166
and 163(A) of the Motor Vehicles Act,
1988. Claim petition was filed in the year
2000; namely, much before the judgment in
Deepal Girishbhai Soni and Ors. Vs.
United India Insurance Company Limited,
Baroda, AIR 2004 SC 2017, has held that
claim petition preferred u/s 163A is under
No Fault Liability and though decided the
petition as of it is under Section 166 of Act
9 All. Smt. Somwati & Ors. Vs. N.I.C.L. & Ors.
409
granted compensation as per Section 163A
whether such approach is sustainable.

6. It is clear that the matter when it
proceeded,
the
learned
Judge
also
mentioned that it was filed under Section
166 read with Section 163A of Motor
Vehicles Act, 1988 and while passing the
award granted a sum of Rs.3,29,500/-
holding that under the Section 163A of
Motor Vehicles Act, the said amount was
admissible and granted interest at the rate
of 12%. The Tribunal has decided issue
no.1, namely, the issue of negligence in
favour of claimants.

7. It is contended by Sri R.K.Porwal,
learned counsel for appellants that the
matter has been decided as per Section 166
of Motor Vehicles Act, if the Tribunal had
decided the issue of negligence and it
cannot grant compensation as per Section
163A which bad in eye of law. The income
slab was not considered by the Tribunal as
income
of
deceased
was
exceeding
Rs.40,000/- per annum as per schedule.

8. Sri R.K.Porwal, learned Advocate
further submits that in the year 1997, it
was a general tradition to file claim petition
under Section 166 read with Section 163A
of Act as it was considered that to be
interim application under 163A was interim
compensation.
Application
substituting
Section 140 of Act.

9. Sri R.K. Porwal, learned counsel
for the appellant further submitted that the
income
of
the
deceased
should
be
considered to be at least Rs.15,294/- per
month. It is further submitted by learned
counsel for the appellants that the Tribunal
has not added any amount under the head
of future loss of income which should be
granted in view of decision in of the Apex
Court in National Insurance Co. Ltd. Vs.
Pranay Sethi and others, 2017 Lawsuit
(SC) 1093. It is also submitted that the
Tribunal has granted the split multiplier of
8 for three years of service which would be
9 in view of the decision of the Apex Court
in Sarla Verma and others Vs. Delhi
Transport Corporation and Another,
2009 LawSuit (SC).

10. As against this, Sri P.K. Sinha,
learned counsel appearing on behalf of
respondent insurance company submits that
just because the issue of negligence was
decided it cannot be said that the matter
was decided under Section 166 of Motor
Vehicles Act, 1988. The compensation is
decided as per the claim petition and does
not call for any upward enhancement as
despite the income being Rs.12,000/- per
month, Tribunal has considered it as
Rs.15,000/- per month.

11. Sri P.K. Sinha, learned Advocate
further submits that as far as issue no. 4 is
concerned, the Tribunal has decided that
the income would be Rs.15,000/- p.m. The
income on record was Rs.12,294/- p.m. and
that is what the Tribunal had to consider,
therefore, it is submitted that future
prospect has not to be added as Rs.15,000/-
is granted as amount is already granted and
the Tribunal has considered the income to
be Rs.12,294/- and deducted 1/3rd and
granted multiplier of 8 as the deceased was
aged about 56 years and therefore it is
submitted that the appeal should be
dismissed.

12. Sri P.K. Sinha, learned counsel for
respondent has contended that multiplier of
8 granted by Tribunal is not exorbitant and
it would suffice for non grant of amount
under the head of non pecuniary loss and
future loss of income. Learned counsel
410 INDIAN LAW REPORTS ALLAHABAD SERIES
further submits that in the year of accident
in the State of U.P., no future prospect was
granted. Learned counsel further submits
that even in the year of accident in 1997,
the repo rate was not 12% and interest
granted at the rate of 12 % is exorbitant and
requires to be reworked. It is submitted by
learned counsel on his oral submission that
there is breach of policy as licence of driver
was not produced and relied the judgment
of this Court in F.A.F.O. No.2389 of 2016
(National Insurance Co. Ltd. Vs. Smt.
Vidyawati Devi And 2 Others) decided
on 27.7.2016 and in First Appeal From
Order No.3381 of 2003 ( Raghuraj Singh
Vs. Gyan Singh and other) decided on
8.4.2022. Order 43 Rule 1 (r) of C.P.C.
learned counsel would like to press the
issue of interest also which should be at the
rate of 7% and not 12% as granted by the
Tribunal in view of the decision of this
Court in National Insurance Company
Limited Vs. Lavkush and another, 2018
(1) T.A.C. 431 and U.P. Motor Vehicle
Rules.

13. Heard the learned counsels for the
parties and considered the factual data. It is
an admitted position of fact that the
Insurance Company has accepted the award
and has not challenged the same. There is a
categorical finding by the Tribunal that
before Tribunal neither the driver was
produced nor was policy produced and the
Tribunal decided issue no.2 against the
insurance company. Thus this ground taken
for first time in appeal after 22 years cannot
be accepted. This Court finds that the
accident occurred on 24.1.1997 causing
death of Man Singh Yadav who was 56
years of age at the time of accident. The
Tribunal has assessed his income to be
Rs.15000/- per month as he was a Principal
in a Indra Gandi Inter College, Khadakpur,
Saraiya which according to this Court, in
the year of accident, is just and proper. To
which as the deceased was in the age
bracket of 56-60, 15% of the income will
have to be added in view of the decision of
the Apex Court in Pranay Sethi (Supra).
Looking to the general trend even in
Gobald Motor Service Ltd. and another
Vs. R.M.K Veluswami and other, 1962
SCR(1) 929, the addition of 15% can be
granted. The deduction as granted by the
Tribunal is maintained. The multiplier
would be 9 to which looking to the
pendency of the matter which has been
pending here since more than 22 years.
Rs.70,000/-
under
the
head
of non
pecuniary damages would suffice for
claimants.

14.

Sri
R.K.
Porwal,
learned
Advocate has relied on the judgment of
Supreme Court in N. Jayasree and others
Vs.
Cholamandalam
MS
General
Insurance
Company
Limited,
2021
LawSuit(SC) 656 on split multiplier and
no deduction for pension.

15. Hence, the total compensation
payable to the appellants is computed
herein below:

i. Annual Income Rs.1,80,000/- (
Rs.15,000/- per month)

ii. Percentage towards future
prospects : 15% namely Rs.27,000/-

iii. Total income : Rs.1,80,000/- +
Rs.27,000/- = Rs.2,07,000/-

iv. Income after deduction of
1/3rd
towards
personal
expenses
:
Rs.1,38,000/-

v. Multiplier applicable : 9( there
cannot be split multiplier)

vi.
Loss
of
dependency:
Rs.1,38,000/- x 9 = Rs.12,42,000/-

vii. Amount under non pecuniary
heads : Rs.70,000/-
9 All. Smt. Somwati & Ors. Vs. N.I.C.L. & Ors.
411

viii.
Total
compensation
:
Rs.13,12,000/-

16. As far as issue of rate of interest is
concerned, the Tribunal has granted 12%
rate of interest which is disturbed but on
enhanced amount it would be slab-wise as
held herein below.

17. No other grounds are urged orally
when the matter was heard.

18. In view of the above, the appeal is
partly allowed. The award and decree
passed by the Tribunal shall stand modified
to the aforesaid extent. The respondentInsurance Company shall deposit the
amount within a period of 12 weeks from
today. The interest on the enhanced amount
would be 7% from the date of filing of
claim petition till the award and thereafter
it would be 4% as the matter has remained
pending
without
fault
of
insurance
company. The amount already deposited be
deducted from the amount to be deposited.

19. Record be sent back to Tribunal
forthwith.

20. The finding of Tribunal in issue
no.2 is that firstly, the xerox copy of cover
note is there but no policy is filed and
secondly that the insurance company has
not tried to examine their application to
examine the driver is sufficient. The fact
that challenge by cross objection is not
tried will not preclude from granting.

21. On depositing the amount in the
Registry of Tribunal, Registry is directed to
first deduct the amount of deficit court fees,
if any. Considering the ratio laid down by
the Hon'ble Apex Court in the case of A.V.
Padma V/s. Venugopal, Reported in 2012
(1) GLH (SC), 442, the order of
investment is not passed because applicants
/claimants are neither illiterate or rustic
villagers.

22. In view of the ratio laid down by
Hon'ble Gujarat High Court, in the case of
Smt. Hansagauri P. Ladhani v/s The
Oriental
Insurance
Company
Ltd.,
reported in 2007(2) GLH 291, total
amount of interest, accrued on the principal
amount
of
compensation
is
to
be
apportioned on financial year to financial
year basis and if the interest payable to
claimant for any financial year exceeds
Rs.50,000/-,
insurance
company/owner
is/are entitled to deduct appropriate amount
under the head of 'Tax Deducted at Source'
as provided u/s 194A (3) (ix) of the Income
Tax Act, 1961 and if the amount of interest
does not exceeds Rs.50,000/- in any
financial year, registry of this Tribunal is
directed to allow the claimant to withdraw
the
amount
without
producing
the
certificate from the concerned Income- Tax
Authority. The aforesaid view has been
reiterated by this High Court in Review
Application No.1 of 2020 in First Appeal
From Order No.23 of 2001 (Smt. Sudesna
and others Vs. Hari Singh and another)
while disbursing the amount.

23. The Tribunal shall follow the
guidelines issued by the Apex Court in
Bajaj
Allianz
General
Insurance
Company Private Ltd. v. Union of India
and others vide order dated 27.1.2022, as
the purpose of keeping compensation is to
safeguard the interest of the claimants. As
22 years have elapsed, the amount be
deposited in the Saving Account of
claimants in Nationalized Bank without
F.D.R.

24. In view of the above, the
Insurance Company is granted recovery
412 INDIAN LAW REPORTS ALLAHABAD SERIES
rights subject to the aforesaid rider and in
view of the judgment of this Court passed
in First Appeal From Order No.3381 of
2003 (Raghuraj Singh Vs. Gyan Singh
and other) decided on 8.4.2022.

25. This Court is thankful to both the
counsels for getting this old matter decided.
----------
(2022) 9 ILRA 412
APPELLATE JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 08.08.2022

BEFORE

THE HON'BLE DR. KAUSHAL JAYENDRA
THAKER, J.
THE HON'BLE AJAI TYAGI, J.

FAFO No. 883 of 2017

Smt. Rajni Singh & Ors.
 ...Appellants/Claimants
Versus
IFFCO TOKIYO & Ors.
 ...Respondents/Defendants

Counsel for the Appellants:
Sri Bhanu Prakash Verma, Sri Mayank

Counsel for the Respondents:
Sri Pawan Kumar Singh

A. Civil Law - Motor Vehicle Act, 1988Sections 173 & 166-Appeals-rejection of
claim petition-deceased was Assistant
Teacher in primary school and monthly
income of deceased was Rs. 28,528/-per
month-the deceased was survived by five
dependents and the age of deceased was
30 years, By applying the multiplier of 17,
the total loss of dependency is assessed
Rs.65,47,176 and also awarded 2,70000/-
for medical expenses and non-pecuniary
damages-Thus,
the
claimants

held
entitled for total compensation of Rs.
68,17,176/ with interest @ 7.5%-Finding
of the Tribunal set aside-Filing of chargesheet prima facie proof of accident having
taken place-Thus the Tribunal committed
error in rejecting the claim petition.(Para
1 to 42)

The appeal is partly allowed. (E-6)

List of Cases cited:

1. UPSRTC Vs Km Mamta & ors. (2016) AIR SC
948

2. Smt. Meenakshi Srivastava & ors. Vs Dhiraj
Pandey & ors. (2022) Law Suit All. 247

3. Bimla Devi & ors. Vs Himachal Road Trans.
Corp. & ors. (2009) AIR SC 2819

4. Ravi Vs Badrinarayan & ors. (2011) AIR V SC
1226 Para 20

5. Jai Prakash Vs National Ins. Co. Ltd. & ors.
(2010) 2 SCC 607

6. Dulcina Fernandes & ors. Vs Joaquim Xavier
Cruz & ors. (2014) AIR SC 58

7. Mangla Ram Vs O.I.C. Ltd. & ors..

8. Sunita & ors. Vs RSRTC & ors. (2019) AIR SC
994

9. Anita Sharma Vs New India Assur. Co. (2021)
AIR SC 302

10. Vimla Devi & ors. Vs National Ins. Co. Ltd &
ors. (2019) AIR 2 SCC 186

11. Jai Prakash Vs National Ins. Co. Ltd. & ors..
SLP (Civil) Nos. 11801-11804 of 2005

12. Ranjeet Singh Vs The O.I.C. Ltd. & ors.
FAFO No. 1902 of 2010

13. Deen Dayal & ors. Vs Nishan Singh & ors.
FAFO No. 1556 of 2002

14. Prabha Sharma & ors. Vs The New India
Assur. Co. Ltd. & ors. FAFO No. 3602 of
2021

15. Vinita Kesarwani & ors. Vs O.I.C. Ltd. & ors..
FAFO No. 316 of 2012